Retired OIG Special Agent and Advize’s Director of Litigation & FWA Support will be stepping in each week to examine current fraud trends from the lens of an investigator. Stay tuned for weekly insights, updates, and information on healthcare’s most expensive crimes
Last week, I discussed the three main types of subpoenas that are typically used in healthcare fraud investigations. As a continuation of that discussion, it is also important to understand the distinction in the types of investigations that are undertaken in healthcare fraud matters. There are generally three areas where an investigation might go: criminal, civil and/or administrative. Criminal and civil cases might go hand in hand, whereas an administrative investigation can take a form of its own.
Criminal and civil investigations in the federal healthcare fraud context are usually overseen by the local US Attorney’s Office where the venue for the matter rests. Due to the national nature of many healthcare fraud matters, multiple US Attorney Offices might have venue, and it then in part will depend on what investigative office is leading the matter. Often, particularly in the case of Qui Tams (whistleblower cases), an attorney representing the whistleblower (known as the Relator), will seek to find venue in a federal district where the type of case has previously been successful. This is the case with many of the Qui Tam matters that are investigated in the District of Massachusetts. That district is one of the best at investigating and prosecuting cases involving the pharmaceutical industry.
Criminal cases are guided by a potential violation of the federal criminal code (for healthcare fraud matters can be found under Title 18 and Title 42 of the US Code). The ultimate result of a criminal violation is a conviction, which can include probation, prison, fines, and restitution, exclusion from participating in government healthcare programs, among other things. Some of the collateral effects of a healthcare fraud conviction can be state action against a license. The OIG, and the federal government, in general, do not get directly involved in licensure matters.
Civil cases are guided by a potential violation of the False Claims Act (FCA). The FCA has its foundation in the Civil War, when the Union was buying poor quality goods for the war effort. The ramifications of a civil settlement are usually financial in nature. That financial implication can include large damages and penalties and can also include corporate integrity agreements and voluntary/permissive exclusion. It is not uncommon for a global resolution to be agreed to, which works to help a defendant resolve his criminal and civil liabilities at the same time. This can have a great positive effect on the final resolution. A defendant may be able to offset their financial liability to the civil portion of a case, thus lowering their potential criminal exposure under the US Sentencing Guidelines. It can also facilitate saving the government the added burden of preparing for parallel trials, litigating criminal and civil liabilities, etc.
Administrative cases are an entirely different type of case, but most closely can be compared to a civil investigation. Administrative cases in the healthcare fraud world are typically overseen by the Office of Counsel to the Inspector General (OCIG) and fall under the Civil Monetary Penalties Law (CMPL). The settlements that result from these investigations are similar to those under an FCA case, and can include a period of exclusion, or a reservation of rights to exclude (just as with a civil settlement). The rules for conducting a CMPL case are slightly different than an FCA case, with most notably the matter being adjudicated by an administrative law judge (ALJ) opposed to a federal district court judge.
I was a rare breed with my investigations. I loved working the CMPL cases, mostly because the attorneys that I worked with from OCIG were not only great to work with, but they understood every issue at hand, including the most nuanced of issues that are particular to healthcare fraud matters.
Advize Health LLC is a healthcare advisory and consulting company that provides a breadth of healthcare industry services in the payer, provider, and legal communities. Contact Eric Rubenstein for more information on our Fraud Spotlight series.